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14.12.2012 Official
Journal
of
the
European
Union
L
344/1
I
(Legislative acts)
REGULATIONS
REGULATION (EU) No 1168/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 12 December 2012
amending Council Regulation (EC) No 1225/2009 on protection against dumped imports from
countries not members of the European Community
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
producers who are not part of the sample, irrespective of
EUROPEAN UNION,
whether the number of cooperating producers is large.
However, such a practice would impose a dispropor
tionate administrative burden on the investigating auth
orities of the Union. Therefore, it is appropriate to
Having regard to the Treaty on the Functioning of the European
amend Regulation (EC) No 1225/2009.
Union, and in particular Article 207(2) thereof,
(3)
Moreover, the use of the sampling technique provided for
Having regard to the proposal from the European Commission,
in Article 17 of Regulation (EC) No 1225/2009 for the
purposes of determining claims for market economy
treatment pursuant to subparagraph (c) of Article 2(7)
of that Regulation is allowed under the rules of the
After transmission of the draft legislative act to the national
World Trade Organisation. For example, the panel of
parliaments,
the Dispute Settlement Body of the World Trade Organi
sation in the dispute DS405 ‘European Union — Anti-
Dumping Measures on Certain Footwear from China’ ( 4 )
(report adopted on 22 February 2012) found that China
did not establish that the Union acted inconsistently with
Acting in accordance with the ordinary legislative procedure ( 1 ),
Articles 2.4 and 6.10.2 of the Anti-dumping Agreement,
paragraph 15(a)(ii) of China’s Accession Protocol, and
paragraph 151(e) and (f) of China’s Accession Working
Party Report, by failing to examine the market economy
Whereas:
treatment applications of the cooperating Chinese
exporting producers that were not part of the sample
for the original investigation.
(1) In
Case
C-249/10
P
( 2 ), the Court of Justice ruled that the
sampling technique provided for in Article 17 of Council
Regulation (EC) No 1225/2009 ( 3 ) may not be applied
for the purposes of determining claims for market
(4) Therefore,
taking
into
account
that
background
and
for
economy treatment pursuant to subparagraph (c) of
reasons of legal certainty, it is considered appropriate to
Article 2(7) of that Regulation.
introduce a provision clarifying that the decision to limit
the investigation to a reasonable number of parties by
using samples on the basis of Article 17 of Regulation
(EC) No 1225/2009 also applies to the parties subject to
an examination in accordance with subparagraphs (b)
(2) The
ruling
by
the
Court
of
Justice
would
require
that
the
and (c) of Article 2(7) of that Regulation. Consequently,
Commission examine all applications for market
it is also appropriate to clarify that a determination under
economy treatment filed by cooperating exporting
subparagraph (c) of Article 2(7) of that Regulation should
not be made for exporting producers that are not part of
( 1 ) Position of the European Parliament of 25 October 2012 (not yet
the sample, unless such producers request and obtain
published in the Official Journal) and decision of the Council of
individual examination in accordance with Article 17(3)
6 December 2012.
thereof.
( 2 ) Case C-249/10 P Brosmann Footwear (HK) and others v Council,
judgment of 2 February 2012.
( 3 ) OJ L 343, 22.12.2009, p. 51.
( 4 ) WTO, Report of the Panel, WT/DS405/R, 28 October 2011.

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L 344/2
EN
Official Journal of the European Union
14.12.2012
(5) Furthermore,
it
is
considered
appropriate
to
clarify
that
initiation of the investigation’ are replaced by the
the anti-dumping duty to be applied to imports from
words ‘shall normally be made within seven months
exporters or producers which have made themselves
of, but in any event not later than eight months after,
known in accordance with Article 17 of Regulation
the initiation of the investigation’;
(EC) No 1225/2009 but were not included in the exam
ination is not to exceed the weighted average margin of
dumping established for the parties in the sample, irre
(b) the following subparagraph is added:
spective of whether the normal value established for such
parties was determined on the basis of Article 2(1) to (6)
or subparagraph (a) of Article 2(7) of that Regulation.
‘(d) When the Commission has limited its examination
in accordance with Article 17, a determination
pursuant to subparagraphs (b) and (c) of this
(6) Finally,
the
three-month
time
limit
by
which
a
deter
mination pursuant to subparagraph (c) of Article 2(7)
paragraph shall be limited to the parties included
of Regulation (EC) No 1225/2009 should be made has
in the examination and any producer that receives
proved impracticable, in particular in proceedings where
individual treatment pursuant to Article 17(3).’;
sampling in accordance with Article 17 of that Regu
lation is applied. It is therefore considered appropriate
(2) in Article 9(6), the first sentence is replaced by the
to extend that time limit.
following:
(7)
In the interests of legal certainty and the principle of
sound administration, it is necessary to provide that the
‘When the Commission has limited its examination in
amendments to Regulation (EC) No 1225/2009 provided
accordance with Article 17, any anti-dumping duty
for in this Regulation are to apply as soon as possible to
applied to imports from exporters or producers which
all new and to all pending investigations.
have made themselves known in accordance with Article 17
but were not included in the examination shall not exceed
the weighted average margin of dumping established with
(8) Regulation
(EC)
No
1225/2009
should
therefore
be
respect to the parties in the sample, irrespective of whether
amended accordingly,
the normal value for such parties is determined on the basis
of Article 2(1) to (6) or subparagraph (a) of Article 2(7).’.
HAVE ADOPTED THIS REGULATION:
Article 2
Article 1
This Regulation shall apply to all new and to all pending inves
Regulation (EC) No 1225/2009 is hereby amended as follows:
tigations as from 15 December 2012.
(1) Article 2(7) is amended as follows:
Article 3
(a) in the penultimate sentence of subparagraph (c) the
This Regulation shall enter into force on the day following that
words ‘shall be made within three months of the
of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 12 December 2012.
For the European Parliament
For the Council
The President
The President
M. SCHULZ
A. D. MAVROYIANNIS

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